BRATTLEBORO -- Earlier this month, a federal court awarded more than $235 million to the managers of three decommissioned nuclear power plants, reimbursement for the costs of storing spent fuel from 2002 through 2008. The award was a result of the federal government's failure to remove nuclear waste from Connecticut Yankee in Haddam Neck, Conn., Yankee Atomic in Rowe Mass., and Maine Yankee in Wiscasset, Maine.

Earlier this year, after 14 years of legal wrangling, the federal government reimbursed the three companies nearly $160 million in damages for costs incurred from 1998 through 2001. And they're not done. Recently, the three companies filed a third round of damages claims in the U.S. Court of Federal Claims for the years 2009-2012.

According to contracts signed with the U.S. Department of Energy, the federal government was obligated to begin the removal of waste in 1998, but because of the failure to open a federal repository at Yucca Mountain, in Nevada, there has been no place to ship the waste. The United States spent nearly $8 billion researching, designing and building the storage facility at Yucca Mountain, but in 2008, political pressure forced the DOE to abandon the site. Currently, the spent fuel is stored in dry casks at nuclear sites -- both operating and non-operating -- around the country. In addition, waste is also stored in spent nuclear fuels such as the one in the reactor building at Vermont Yankee nuclear power plant in Vernon.

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There are nearly 70,000 metric tons of spent fuel stored at various sites around the country. At Yankee, there are 13 200-ton casks, each containing 68 fuel assemblies, or 25 tons of radioactive material. The concrete pad approved by the Vermont Public Service Board for storage of spent fuel is designed to hold 36 casks. According to Rob Williams, spokesman for Yankee, when all the fuel is eventually removed from the spent fuel pool and the reactor, another pad with room for 22 more casks, will need to be approved and built.

The last time fuel was moved to the storage pad was between May and July of 2012, said Williams.

Robert Alvarez, a former official at the DOE, told the Vermont Legislature in April there are 513 metric tons of spent fuel in Yankee's spent fuel pool, which he said is four times the amount intended.

"The Vermont Yankee pool contains more than the entire inventory of spent fuel than in the four damaged reactors at the Fukushima site at this time," he said.

In 1983, nuclear energy companies signed contracts and paid fees to the federal government to pay for transportation and storage of nuclear waste. Operators of nuclear power plants have been suing the federal government to be compensated for their costs of managing spent fuel because of the DOE's default.

In 2008, Entergy Vermont Yankee received more than $46 million in damages from the Department of Energy, though on appeal, it was reduced to $40 million.

Also in 2008, Entergy applied to the Nuclear Regulatory Commission to withdraw $100 million from the then $360-million decommissioning fund to pay for spent fuel management. The NRC rejected the request, saying the funds can only be used for decommissioning except if a portion of the fund has been pre-designated for spent fuel management.

The NRC denial stated "Such costs do not include spent fuel management costs under (NRC regulations). Funds placed in the decommissioning trust fund may only be used for decommissioning, unless the funds are in addition to decommissioning funds and if they have been earmarked for spent fuel management. Entergy has not earmarked such funds and does not have a separate subaccount to address spent fuel management costs."

However, noted the NRC in 2009, the plant's decommissioning fund had sufficient monies to cover the cost of decommissioning and spent fuel management with a cash contribution of $127 million scheduled in 2026.

Currently, said Jim Sinclair, spokesman for Yankee, all costs for maintaining the spent fuel are coming out of the operating budget.

"We can apply to take money out of the decommissioning fund and if we incur costs during decommissioning itself, we can get those costs back as well," said Sinclair.

In filings to the Vermont Public Service Board, Entergy has asked that the state "conclude that costs incurred for spent nuclear fuel management will be recovered from the federal government."

But is full recovery of the costs of maintaining spent fuel realistic? That's the concern of organizations such as the Windham Regional Commission and Vermont's Department of Public Service, who want the Public Service Board to force Entergy to agree not to spend any of the plant's decommissioning fund on spent fuel management.

It's the WRC's position, said Executive Director Chris Campany, that spent fuel management costs should come out of operating costs or directly from Entergy, and not the decommissioning fund, and should be done as soon as safely possible.

"We see the litigation landscape regarding recoverable expenses as unsettled, and reject Entergy VY's assertion that all or most of the costs for SNF management will be recovered and not absorbed by the Decommissioning Trust Fund," stated the WRC, in documents filed before the board. "Entergy VY has budgeted as much as $502.9 million for spent fuel management, and if the award for future damages is reduced by 13 percent (the difference between the original $46 million settlement and the $40 million appeal) the unreimbursed expenses could be as high as $65 million."

According to Entergy's decommissioning plan, it will cost about $825 million to clean up the site to NRC standards, of which $656 million would be used for the plant's radiological decommissioning. Another $40 million would be used for site restoration, leaving a possible $130 million or so for spent fuel management.

But the state has a higher standard than the NRC. In a memorandum of understanding attached to the 2002 sale approval, Entergy agreed to return the site to a greenfield, which could cost $1 billion or more.

The state and WRC also believes Entergy must remove all structures, above and below ground, that weren't there prior to the plant's construction. In hearings before the Public Service Board, Entergy has argued that it is only required to remove structures down to three feet below the surface.

"The MOU says all structures," said Campany. "If you say all structures, you mean all structures."

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.

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